Kenya: judges say Kadhi courts illegal

In a landmark ruling, Kenyan judges sitting as a Constitutional Court  have said the decision to include the Muslim  Kadhi courts in the country’s supreme law was an illegality that favoured one religion over others.

However, the judges reserved their decision on whether the provision should be included in the proposed constitution, which will be subjected to a referendum on 4 August.

In a 114-page ruling, the judges held that the enactment and application of kadhis’ courts to areas beyond the 10-mile strip specified during their establishment in the colonial times is unconstitutional.

It further declared section 66 of the Constitution, which introduced the courts, as superfluous. The section, the judges ruled, infringed on the constitutional rights of a group of 26 religious leaders who went to court to challenge the kadhi courts.

In effect, the ruling kills the foundation upon which the formation of the courts is based.

“Financial maintenance and support of the kadhi courts from public coffers amounts to segregation, is sectarian, discriminatory and unjust against the applicants and others... it amounts to separate development of one religion and religious practice contrary to the principle of separation of state and religion,” ruled Court of Appeal judge Joseph Nyamu and High Court judges Mathew Anyara Emukule and Roselyne Wendoh.

Financing the kadhi courts using public money, they said, was contrary to the universal norm and principles of liberty and freedom of religion envisaged under sections 70, 78 and 82 of the Constitution.

Above all, the judges said, even the decision to come up with the Kadhi Courts Act, which extended them beyond former protectorate areas of the Sultanate of Zanzibar, contravened the Constitution. The judges declared the Act null and void.

A cross section of prominent leaders and constitutional lawyers have dismissed the ruling as being of no consequence to the upcoming referendum

Mr Mutula Kilonzo Justice and Constitutional Affairs minister said disputes arising from the review process were outside the jurisdiction of the High Court.

“I consider the judgement of no consequence unless Kenyans say No on 4 August. The High Court has no powers over the review process,” he said adding that the Interim Independent Constitutional Dispute Resolution Court was the right avenue to address issues in the proposed constitution.

Committee of Experts chairman Nzamba Kitonga described the ruling as a wrong decision, which cannot stop the referendum.

“Once something is in the Constitution, you cannot declare it unconstitutional,” he said. Mr Kitonga said the timing of the ruling was “odd”.

Mr Mohammed Abdikadir, chairman of the Parliamentary Select Committee, said the review process was cushioned from such decisions.

Christian religious leaders have maintained that the draft constitution, as it is, tramples on religious and moral justice. They reiterate that it is still not too late for Kenyans to resolve the contentious issues in the draft constitution before the referendum. This can be easily achieved by Parliament convening and amending the necessary Acts as previously communicated.

The Muslims in reaction to the ruling have challenged the legality of the ruling, accused the three judges of bias and clearly stated that they believe the Ruling was made in bad faith, calculated to sow the seeds of discord between Muslims and non-Muslims brothers and sisters and to adversely influence the outcome of the upcoming Referendum.

In a statement released from Jamia mosque in Nairobi today, they have vowed to continue to support the enactment of the proposed constitution in its entirety.

See also: Kenyan Bishops reject draft constitution

Source: Catholic Information Service Africa

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